State Sues E.P.A. for Files On Household Pollutants

By DANNY HAKIM

Published: February 15, 2006

As New York and other states grapple with the gradually tightening requirements of the Clean Air Act, the Environmental Protection Agency is refusing to turn over records detailing the levels of smog-causing compounds found in common household and industrial products like paints and varnishes.

Such volatile organic compounds are not only significant contributors to smog, but they have also been linked to a variety of health problems, including the rising asthma rates in cities like New York and Los Angeles.

After trying for two years to obtain the records, New York State sued the E.P.A. on Tuesday, saying that the agency has violated the Freedom of Information Act by denying the state's repeated requests for the records. State officials say they need the records to draw up a plan to comply with strict new rules on smog-forming pollution being phased in under the Clean Air Act. The records are submitted to the E.P.A. by manufacturers of paint products.

New York and California, as well as some other states on the East Coast, have stricter regulations on volatile organic compounds because they have worse summertime smog problems than other states.

In refusing to turn over the records, the E.P.A. appears to be siding with paint manufacturers, which have been battling in court to prevent state attempts to regulate their products. And the paint companies have been aided in the past by at least one influential friend, Senator George V. Voinovich, an Ohio Republican who personally appealed to the E.P.A. on behalf of Sherwin-Williams, based in Cleveland.

A letter he wrote in October 2004 asked the agency to heed the industry's objections to allowing some states to tighten their regulations of volatile organic compounds.

Now states are having trouble determining even what the levels of such pollutants are. Companies like Sherwin-Williams are stating that the information about the pollutants in their products, which they submitted to the E.P.A., is proprietary and represents trade secrets, an assertion that the agency has supported, according to New York's court filing.

New York officials say the information should be made public, arguing that the agency, despite a request under the Freedom of Information Act, has not made a sincere effort to determine, as required by law, whether companies were making valid claims that the data was a trade secret.

One of the few documents that New York has received from the E.P.A. indicates that paint producers are often using a loophole in the regulatory system to pay their way out of reducing the pollutant levels of their products. Sherwin-Williams paid more than $5 million in 2002 to avoid fully reducing its levels of volatile organic compounds to required limits, according to the document. The amount was more than 15 times the noncompliance fee paid by any competitor.

In a statement on Tuesday, New York's attorney general, Eliot Spitzer, said that ''the state is entitled by law to this critical information so it can effectively implement its clean air programs to preserve public health.''

He added, ''The E.P.A. has no grounds on which to deny such a request.''

Mr. Spitzer, a Democrat, is suing on behalf of the state's Department of Environmental Conservation, a branch of Gov. George E. Pataki's administration.

An E.P.A. spokesman, John R. Millett, said in a statement on Tuesday that the agency's intent ''is to provide New York with all the information it is entitled to. The agency is looking into the matter in order to provide the state a final response to its request.''

Conway G. Ivy, a senior vice president at Sherwin-Williams, said a great majority of his company's products complied with the regulations on volatile organic compounds, though not the specialty products like paints used on roads or for industrial maintenance. ''Our customer base indicates they would prefer the performance of these noncomplying products,'' he said.

The stalemate is the latest in a series pitting states, including those like New York and California, which have Republican governors, against the environmental policies of the Bush administration. In one battle, automakers, with the support of the E.P.A., are suing both New York and California over state plans to aggressively regulate emissions of carbon dioxide from cars and trucks. The Bush administration has rejected such state moves.

Last year, Mr. Pataki and Gov. Arnold Schwarzenegger of California wrote a letter to President Bush asking him to preserve their ability to set stricter environmental rules.

The new lawsuit comes as the Bush administration has come under criticism for restricting the flow of information on issues related to smog-forming pollutants and global warming emissions. Last month, a top NASA scientist said that Bush administration officials were trying to censor his views on climate change. Last year, the administration delayed the release of a report on the gas mileage of cars and trucks until after the voting on the energy bill.

S. William Becker, executive director of the State and Territorial Air Pollution Program Administrators, an association of state and local air quality regulators, said the disclosure that 75 companies like Sherwin-Williams were paying fees in lieu of at least some of their required pollutant reductions was troubling.

''What E.P.A. is doing is allowing the industry to buy their way out of federal regulations,'' he said. He added that states would be forced to regulate similar pollutants from the small businesses that cannot afford such fees, like bakeries and auto body repair shops.

Chart: ''The Cost of Pollution''
Many companies, most of which make paint and varnish, pay fees when their products contain levels of volatile organic compounds higher than permitted. Here are the 10 highest total fees in 2003.